Chenhsin Chan v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12179
Non-Argument Calendar
____________________
CHENHSIN CHAN,
a.k.a. Paul Chan,
a.k.a. ChenHsin Chan,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 22-12179
D.C. Docket Nos. 1:19-cv-03447-WMR-AJB,
1:14-cr-00203-WMR-AJB-1
____________________
Before N EWSOM, A NDERSON , and E D C ARNES , Circuit Judges
PER CURIAM:
The district court dismissed Chenhsin Chan’s 28 U.S.C.
§ 2255 motion because it was time-barred. Chan filed a motion for
relief from that decision under Federal Rule of Civil Procedure 60,
and the court denied it. We granted him a certificate of appealabil-
ity on the issue of whether the court abused its discretion in deny-
ing Rule 60 relief. Chan contends that the alleged misconduct of
his § 2255 habeas counsel, along with the deficiencies of his trial
counsel, constitutes “extraordinary circumstances” sufficient to
warrant relief under Rule 60(b)(6).
I.
In May 2016, a jury found Chan guilty of mail fraud, intro-
duction of adulterated food, knowing distribution of a listed chem-
ical, and money laundering. He was sentenced to 135 months in
prison. In July 2019, Chan filed a pro se motion to vacate, set aside,
or correct his prison sentence under § 2255, twenty days after the
statute of limitations expired. Chan contends that this motion was
ghostwritten by an organization called the National Legal Profes-
sional Associates, who were engaged in the unauthorized practice
of law and improper fee sharing. Chan asserts that National actu-
ally filed his § 2255 motion as if it were pro se to in an attempt to
trick the court and hide its ethical violations. He also claims that
the motion “argued meritless points and ignored blatant and obvi-
ous deficiencies in the representation at trial.”
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22-12179 Opinion of the Court 3
In July 2020, the magistrate judge entered a report and rec-
ommendation advising the district court to dismiss Chan’s § 2255
motion due to untimeliness. Chan did not file any objections to
the report. In September 2020, the district court adopted the mag-
istrate judge’s recommendation and dismissed Chan’s § 2255 mo-
tion as time-barred. Chan appealed that judgment, but we dis-
missed his appeal for failure to prosecute because Chan did not pay
the filing and docketing fees or file a motion to proceed in forma
pauperis.
In February 2022, seventeen months after the district court
dismissed his § 2255 motion, Chan filed a motion to vacate that
judgment, in part requesting that the court grant him relief under
Federal Rule of Civil Procedure 60(b). Chan contended that the
court should set aside its judgment due to his habeas attorneys’ al-
leged ethical violations.
The district court denied Chan’s motion. It explained that
his arguments under Rule 60(b)(6) failed because Chan did not pre-
sent evidence of his claim that his former lawyers committed ethi-
cal violations in filing his habeas petition. The court also found that
even if Chan’s allegations were true, his attorneys’ alleged miscon-
duct did not rise to the level of an extraordinary circumstance that
would entitle him to relief. Chan appealed the denial of his motion
to vacate. We issued a certificate of appealability on “[w]hether
the district court abused its discretion by denying Mr. Chan’s Fed.
R. Civ. P. 60 motion, to the extent that he sought relief under Rule
60(b)(6).”
II.
Rule 60(b)(6) allows district courts to set aside a judgment
for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Such
relief, however, “is an extraordinary remedy.” Booker v. Singletary,
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4 Opinion of the Court 22-12179
90 F.3d 440, 442 (11th Cir. 1996). Qualifying for that relief “requires
a showing of extraordinary circumstances” that would “justify[]
the reopening of a final judgment,” which the Supreme Court has
stated “will rarely occur in the habeas context.” Gonzalez v. Crosby,
545 U.S. 524, 535–36 (2005) (quotation marks omitted). In habeas
cases, Rule 60(b) motions can only challenge “some defect in the
integrity of the federal habeas proceedings”; they cannot “attack[]
. . . the . . . resolution of a claim on the merits.” Id. at 532; see also
Padilla v. Smith, 53 F.4th 1303, n.41 (11th Cir. 2022) (“When a Rule
60 motion attacks the substance of the federal court’s resolution of
a petition’s claim on the merits, as opposed to a defect in the integ-
rity of the habeas proceeding, it is not truly a Rule 60 motion — it
is a successive habeas petition.”).
Whether to grant a Rule 60(b) motion is generally “a matter
for the district court’s sound discretion.” Arthur v. Thomas, 739 F.3d
611, 628 (11th Cir. 2014) (quotation marks omitted). For that rea-
son we review a district court’s denial of a Rule 60(b) motion only
for an abuse of discretion. Farris v. United States, 333 F.3d 1211, 1216
(11th Cir. 2003). When applying the abuse of discretion standard,
“we will leave undisturbed a district court’s ruling unless we find
that the district court has made a clear error of judgment, or has
applied the wrong legal standard.” Arthur, 739 F.3d at 628.
The scope of review in a habeas appeal is limited to issues
specified in the certificate of appealability. Murray v. United States,
145 F.3d 1249, 1250 (11th Cir. 1998). We lack jurisdiction to address
issues for which a certificate of appealability has not been issued.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As a preliminary mat-
ter, we lack jurisdiction to address Chan’s arguments related to the
underlying merits of his criminal conviction or his § 2255 motion,
as those issues are improper subjects of a Rule 60(b) motion and
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22-12179 Opinion of the Court 5
therefore outside the limited scope of his certificate of appealabil-
ity. See Gonzalez, 545 U.S. at 532; Padilla, 53 F.4th at 1303 n.41.
The district court did not abuse its discretion in deciding that
alleging attorney misconduct without presenting evidence of it did
not amount to an extraordinary circumstance that would entitle
Chan to relief. Unsubstantiated accusations do not put forth the
“showing” of extraordinary circumstances that Rule 60(b)(6) re-
quires for relief. See Gonzalez, 545 U.S. at 536.
Chan’s delay in filing his Rule 60(b) motion and pursuing his
appeal makes his circumstances even less extraordinary. A party’s
lack of due diligence in pursuing review of his case may suggest an
absence of extraordinary circumstances necessary to warrant relief
under Rule 60(b)(6). See id. at 537 (describing the circumstances of
a petitioner’s case as “all the less extraordinary” where he showed
a “lack of diligence in pursuing review” of his case).
Chan doesn’t contend, or offer any evidence to suggest, that
he only recently discovered the alleged fraud and misconduct of
his attorneys. Because of this, Chan’s “lack of diligence in pursuing
review” of his conviction and in complaining about his former at-
torneys — as evidenced by his failure to prosecute the initial appeal
of his § 2255 claim and his seventeen-month delay in seeking Rule
60 relief after dismissal — shows that these are not extraordinary
circumstances.
Moreover Chan’s § 2255 motion was pending before the dis-
trict court for more than a year, during which time Chan didn’t
raise any concerns or arguments related to the alleged misconduct
of his attorneys in that action. If Chan knew of his attorneys’ mis-
conduct during that year, he could have raised the issue before the
district court entered judgment. See Lugo v. Sec’y, Fla. Dept. of Corr.,
750 F.3d 1198, 1212 (11th Cir. 2014) (“It is not an abuse of discretion
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for the district court to deny a motion under Rule 60(b) when that
motion is premised upon an argument that the movant could have,
but did not, advance before the district court entered judgment.”)
(quotation marks omitted). The court did not abuse its discretion
when it determined that Chan had failed to establish extraordinary
circumstances that would entitle him to relief under Rule 60(b)(6).
AFFIRMED.
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